During the robust M&A market of the mid 2000s, prearranged financing terms were commonly included in (or “stapled” to) offering memoranda by sellers seeking bids in auction sales. The investment bank advising the seller would offer to provide debt financing on preset terms to all qualified bidders, usually giving the winning bidder the option, but not the obligation, to accept such financing. Such stapled financing provided several benefits to the seller, including increasing the number of bidders, creating a more robust auction, reducing the time necessary to sign a transaction agreement and possibly providing greater certainty of closing the sale. With the onset of the credit crunch in 2008, however, the willingness of lenders to provide stapled financing greatly diminished.
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A recent Delaware Chancery Court decision, In re Sunbelt Beverage Corporation Shareholder Litigation, should be of significant interest to both lawyers and investment bankers. In its decision, the court provided a detailed analysis of competing discounted cash flow and other valuation analyses . The court also described the fairness opinion as being “highly suspect” and “a mere afterthought, pure window dressing.” This case is discussed further in a blog posted by Alston & Bird on DealLawyers.com.
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In the recent Delaware case In re 3Com Shareholders Litigation, Chancellor Chandler denied plaintiffs’ motion for expedited discovery to garner facts necessary to support a motion to enjoin Hewlett Packard’s proposed acquisition of 3Com Corporation. The plaintiffs argued that expedited discovery should be granted, in part, because management failed to make adequate disclosure regarding its projections, alternatives considered and the analysis performed by its financial advisor, Goldman, Sachs & Co., in its proxy statement recommending that shareholders vote to approve the merger.
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Two blog postings by Alston & Bird on DealLawyers.com discuss issues regarding relative fairness opinions and third-party beneficiary rights of selling shareholders, both in the context of the ACS/Xerox merger. These postings can be read here (December 17, 2009) and here (October 19, 2009).
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